Net complaints can be unfair, damaging, say physicians

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Docs don't like when patients go high-tech on them by reviewing their abilities online.

Updated at 11:15 AM CST on Wednesday, Jan 13, 2010

Depending on who’s writing the rating, a certain New York plastic surgeon is either “very skilled and esthetically gifted” or “very bad,” with results that left one patient “wondering if doctor knows what a female breast looks like.”

The anonymous comments are among the freewheeling posts on RateMDs.com, one of dozens of physician rating Web sites that have sprung up in recent years, offering anyone with access to a computer the chance to rave — or rant — about the treatment received from a doctor.

Most of the testimonies are glowing on sites from Angie’s List to DoctorScorecard.com, but the bad ones can be brutal: Doctors are routinely branded as rude, incompetent — or worse. “He insisted on doing a pelvic exam on me … for a sore throat,” wrote one poster.

Some docs, worried about their reputations, are trying to fight back against negative reviews, requiring patients to sign contracts — critics call them “gag orders” — promising not to post comments to public sites. Others ask patients to sign over copyright to future comments, hoping for leverage to have any nasty tags removed.

Mutual protection — or censorship?Such contracts haven’t been tested in court, and Internet law experts say they’re unlikely to prevail. Still, proponents argue that the waivers are necessary to protect doctors hamstrung by medical ethics and privacy laws. Critics say they’re nothing short of censorship.

“Essentially, patients are being asked to trade in their freedom of speech for medical care,” said John Swapceinski, founder of RateMDs.com, where 400 new ratings of doctors are added every day.

Not so, said Dr. Jeffrey Segal, a neurosurgeon and founder of Medical Justice Services Inc., a North Carolina-based business that helps doctors battle defamation for a fee. Patients are always free to seek the services of a doctor who doesn’t require a waiver. For those who do sign, the contracts are a way to balance the rights of the patient and the rights of the doctor, Segal said.

“There’s no venue for physicians to get their side of the story out,” said Segal, who notes that doctors can't respond to specific patients because doing so would violate federal privacy laws.

While some sites, like Angie's List, know who's posting, most don't identify or verify commenters, said Segal, who blasts that anonymity.

“You don’t know whether it’s a patient, an ex-employee, an ex-spouse or even a competitor," Segal said.

About 1,000 of Medical Justice’s 2,300 members require patients to sign privacy waivers, Segal said, making them part of a small but growing group of doctors trying to clamp down on scathing reviews.

“Patient will not denigrate, defame, disparage, or cast aspersions upon the Physician; and will use all reasonable efforts to prevent any member of their immediate family or acquaintance from engaging in any such activity,” reads the “Mutual Agreement to Maintain Privacy” form posted on the site of Dr. C. Andrew Salzberg, a plastic surgeon and Medical Justice member in Tarrytown, N.Y.

The contracts typically limit patient comments for five years from the last doctor’s visit and they imply that breaking the terms could land the patients in court. Matthew Zimmerman, a lawyer with the Electronic Frontier Foundation, which monitors digital rights, says it’s not likely lawsuits against patients or Web site providers would be successful.

“The doctor can’t legally go to the Web site and demand that the content come down,” said Zimmerman.

Nasty comments? Web sites aren't responsibleUnder the federal Communication Decency Act, Web site providers aren’t liable for the postings of those who comment, no matter what they say. Even so, doctors and their lawyers routinely attempt to intimidate or encourage Web sites to remove offensive posts, said Swapceinski.

He said he’s deleted a very few, but only if they shouldn’t have been accepted in the first place. The post about the doctor performing a pelvic exam for a sore throat was libelous, for instance, and should never have been allowed, he said.

As awareness grows, the waivers may be backfiring on doctors, drawing scathing attention —and possible government sanctions — to the very physicians who sought to avoid it most.

RateMd.com has begun posting names of doctors who require waivers to a so-called “Wall of Shame.”

“This is a very defensive action for the medical profession,” said Hicks, founder of the Indianapolis, Ind., site that boasts more than 1 million members and reviews of 160,000 health providers. “This is an important element for consumers. It’s an important way for them to get feedback they might not have been getting.”

Recently, the Office of Civil Rights for the federal department of Health and Human Services forced a doctors’ practice to stop requiring patients to sign waivers in exchange for privacy protections already mandated under HIPAA, the federal Health Insurance Portability and Accountability Act.

“A covered entity’s obligation to comply with all requirements of the Privacy Rule cannot be conditioned on the patient’s silence,” reads the case ruling, which does not identify the practice or any patient who complained.

HIPPA violators could be subject to fines of at least $1,000 per patient, and perhaps much higher, an HHS spokesman said.

When they're bad, they're badIt takes only a quick scan of the ratings sites to understand why some doctors are opposed to the postings. While three-quarters of the ratings typically are positive, garnering grades of “A” on Angie’s List or sunny smiley faces on RateMD.com, when the rankings are bad, they’re really bad.

“He botched the surgery,” reads one Angie’s List comment about a Seattle-area gynecologist. “I have seen people in his waiting room doubled over in pain … I had to have another surgeon repair the damage he caused from his surgery. Don’t go here.”

“As a result of her inability to understand her patient’s personality and depression, he killed himself,” reads a review of a New York psychiatrist on DoctorScorecard.com.

For doctors, clicking through such reviews can be an “anxiety-provoking” experience, said Dr. Shaili Jain, author of “Googling Ourselves — What Physicians Can Learn from Online Ratings Sites,” a commentary in last week’s New England Journal of Medicine.

“It’s your reputation that’s being put out there and that’s the most valuable thing a physician has,” said Jain, a psychiatry fellow at the Veterans Adminsitration Palo Alto Health Care System at Stanford University.

There are other concerns as well. Most sites post only a few reviews for each doctor, not enough for meaningful evaluation, contends Segal, the Medical Justice founder. Even if patients are legitimate, he adds, they often focus on factors such as punctuality, politeness and the friendliness of the office staff, not medically meaningful outcomes.

“The things they focus on mostly are the subjective perspectives of the doctor’s bedside manner,” Segal said. “I’ll put up with a competent jerk anytime.”

Bedside manner better be goodBut what some doctors don’t realize is that those bedside factors can make or break a patient’s experience, said Jain, who thinks the reviews are valuable. In the growing digital universe, she believes there’s no way to stop them — and doctors will lose out if they try.

“We seldom get to hear what patients want or value because in the real world disappointed patients rarely tell doctors to their face that they think of them,” she said.

Plus, some patients might object to the idea that doctors are trying to stifle them. Ria Moran, a breast cancer patient of Dr. Salzberg, the New York plastic surgeon, disagrees with the idea of privacy waivers.

“I think that people should have the free will to express what they want to express,” said Moran, 58, a writer and editor in Boulder, Colo. “But I also don’t believe in defaming people.”’

Moran doesn’t remember whether she signed a privacy waiver when she saw Salzberg for a mastectomy and breast reconstruction last summer. If she had, she said she probably wouldn’t have posted glowing comments about the doctor on her breast cancer blog.

Salzberg is among doctors flagged by Angie’s List. Like more than a dozen other doctors identified on Web site watch lists, he declined to speak to msnbc.com about his waiver policy. An office spokeswoman referred questions to Medical Justice. The spokeswoman said Salzberg no longer requires waivers, but she couldn’t say when the policy changed or why the forms remain on the doctor’s public site.

After learning of the waivers, Moran contacted Salzberg’s staff. Rather than objecting to her posts, they told her that it was OK to keep this comment on her blog:

“Dr. Salzberg did a fantastic reconstruction job and I am very happy with the results.”